New EU legislation on copyright infringements

The European Commission has launched a proposal for a new Directive that
aims at no less than harmonising penalties for infringements against
copyright laws. The proposal, adopted by the Commission at the end of
January, is currently under discussion in the Legal Affairs Committee of
the European Parliament. A first draft of a ‘Working Document’ was
presented to that Committee by its rapporteur on 28 April.

The proposition, which was drafted under the auspices of Internal Market
Commissioner Frits Bolkestein, is largely modelled after existing
provisions in England and Wales (the Anton Pillar and the Mareva
injunction) and in France (saisie-contrefaçon).

The document contains references to the TRIPS agreement, the Bern
Convention and in particular to the EU Copyright Directive 2001/29/EC. It
calls on Member States to ‘ensure that any infringement of an intellectual
property right is punishable by penalties. These penalties must be
effective, proportionate and deterrent.’ The proposal explicitly covers
technical copy protection, and it gives semi-authoritative powers to
‘rights management or professional defence bodies’, who shall be ‘entitled
to seek application of the measures and procedures referred to in this
Chapter’. In order to safeguard evidence, the proposal foresees ‘the
physical seizure of the infringing goods, if necessary without the other
party having been heard’.

Damages are set as ‘double the royalties or fees which would have been due
if the infringer had requested authorisation to use the intellectual
property right in question’. On top of that fine, the infringing good may
be destroyed.

With regards to criminal law, Member states are called upon to ‘ensure that
all serious infringements of an intellectual property right, as well as
attempts at, participation in and instigation of such infringements, are
treated as a criminal offence.’ Where natural persons are concerned, Member
States shall provide for criminal sanctions, including imprisonment.’

The draftswoman for the EP Committee is Janelly Fourtou, a French
Conservative (UDF) with ties to the publishing industry, who has a history
of dealing with sanctions against infringements. She made her parliamentary
debut four years ago with a report on the EU Green Paper on Combating
Piracy and Counterfeiting in the EU that broadly reflected the interests of
the entertainment industry.

In her Working Document, she criticizes that the Commission Proposal
‘focuses on infringements committed for commercial purposes or causing
significant harm to right holders’, a view which, according to her, ‘has
been severely criticised by some industries’. She gives extensive room to
the repetition of the copyright industry’s arguments, namely that the
Commission Proposal was too soft on ‘certain forms of piracy’. She plans,
however, to co-operate closely with the commission and other Groups in the
EP in order to pass the proposition in First Reading.

Besides Legal Affairs the only Committee involved is Industry; the vote in
Legal Affairs is foreseen for September 11 (indeed), the one in Plenary for
the week following 20 October.

Proposal for a Directive of the European Parliament and of the Council on
measures and procedures to ensure the enforcement of intellectual property
rights
http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0046en01.pdf

Working Document presented by Fourtou to the European Parliament’s Legal
Affairs Committee
http://www.europarl.eu.int/meetdocs/committees/juri/20030428/495099EN.pdf

(Contribution by Andreas Dietl, consultant on EU privacy issues)